“Reasonable Persons:” Trump’s Recusal Stunt Flops

Yesterday, Judge Tanya Chutkan denied Trump’s motion for her recusal.

Chutkan’s order was judicious, clinical, and never once responded to the ridiculous claims John Lauro made in his bid to remove a Black woman judge. In other words, it is a model of judicial temperament, and so will hold up under any appeal.

For example, rather than laying out how much video she had seen implicating Trump in the violence and lawlessness of January 6, Chutkan simply corrected the error Trump’s lawyers had made when they falsely claimed she had seen no video on which to base her comments in Chrstine Priola’s sentencing, and so (they insinuated) had formed opinions based on what she had seen on the news.

The statements at issue here were based on intrajudicial sources. They arose not, as the defense speculates, from watching the news, Reply in Supp. of Mot. for Recusal, ECF No. 58 at 4 (“Reply”), but from the sentencing proceedings in United States v. Palmer and United States v Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.


The court also expressly based its statements in Priola’s sentencing on the video evidence presented earlier in the hearing. Priola Sentencing Tr. at 11– 14, 29. Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.

Here’s the proof, from the sentencing transcript Trump’s attorneys cited themselves, that prosecutors entered the video that Trump’s lawyers claimed they couldn’t find into evidence.

As we’ve discussed, I would like to play seven video clips which the government feels are the best evidence of the defendant’s conduct that day. The clips total about ten minutes. Each was an exhibit to the government’s sentencing memorandum. Before I play each clip, I’ll just preview a little bit about what each clip shows.

[Introduction of each of 6 videos, including notation that the videos were played.]

THE COURT: There’s no Exhibit 6. Is that right?

MS. ZIMMERMAN: No. That was a mistake, Your Honor.


(Video played.)


Does the Court have any questions about any of the videos?

THE COURT: No. Thank you.

Having established that the comments about which Trump complained arose in the course of her role as a judge, Chutkan described that she was obligated to directly address the bids that Robert Palmer and Christine Priola made for a downward departure because they were not as culpable as Trump.

To begin, the court’s statements reflect its obligation to acknowledge Palmer and Priola’s mitigation arguments on the record. As already noted, both defendants sought a lower sentence on the grounds that their culpability for the January 6 attack was lesser than that of others whom they considered to be the attack’s instigators, and so it would be unfair for them to receive a full sentence while those other people were not prosecuted. See supra Section III.A. The court was legally bound to not only privately consider those arguments, but also to publicly assess them. By statute, every judge must “state in open court the reasons for its imposition of the particular sentence.” 28 U.S.C. § 3553(c). For every sentence, the court must demonstrate that it “has considered the parties’ arguments,” Rita v. United States, 551 U.S. 338, 356 (2007), including a defendant’s arguments that their case involves mitigating factors that should result in a lower sentence, United States v. Pyles, 862 F.3d 82, 88 (D.C. Cir. 2017). That is what the court did in those two cases. A reasonable person—aware of the statutory requirement that the court address the defendant’s arguments and state its reasons for its sentence—would understand that in making the statements contested here, the court was not issuing vague declarations about third parties’ potential guilt in a hypothetical future case; instead, it was fulfilling its duty to expressly evaluate the defendants’ arguments that their sentences should be reduced because other individuals whom they believed were associated with the events of January 6 had not been prosecuted.

While Chutkan’s comment about what a “reasonable person” should know given sentencing obligations might be a dig at Trump’s lawyers’ claimed ignorance of this basic fact, it nevertheless adopts the standard for recusal: not what a defense attorney feigning ignorance might argue, but instead what a reasonable person might understand.

Chutkan similarly noted that Trump’s team had to adopt a “hypersensitive, cynical, and suspicious” in order to interpret her factual statements as if they necessarily addressed Trump himself.

But the court expressly declined to state who, if anyone, it thought should still face charges. It is the defense, not the court, who has assumed that the Defendant belongs in that undefined group. Likewise, for the sentencing hearing in Priola, the defense purports to detect an “inescapable” message in what the court did not say: that “President Trump is free, but should not be.” Id. at 2 (emphasis added). The court did state that the former President was free at the time of Priola’s sentence—an undisputed fact upon which Priola had relied for her mitigation argument—but it went no further. To extrapolate an announcement of Defendant’s guilt from the court’s silence is to adopt a “hypersensitive, cynical, and suspicious” perspective rather than a reasonable one. Nixon, 267 F. Supp. 3d at 148.

Again, this opinion should be rock solid in the face of appeal, even if it won’t impress those of “hypersensitive, cynical, and suspicious” disposition.

This opinion addresses what reasonable people should understand and believe. It certainly won’t persuade Trump’s groupies, because they are not reasonable people. But it soundly addresses the standard for recusal and the actual evidence before Chutkan.

104 replies
  1. Eichhörnchen says:

    It is the defense, not the court, who has assumed that the Defendant belongs in that undefined group.

    Awesome. Reminds me of a cabaret song by Frank Wedekind, who had been imprisoned for lèse majesté. From the song: “If you relate [the insult] to His Majesty then you are the one insulting His Majesty.” (Sounds better in German!)

  2. Peterr says:

    Not only are they not reasonable people, but they apparently have no reasonable people in their circles of acquaintance. They live in a world with two kinds of people: con men and marks. They also think that they are the con men, while their willingness to sacrifice their legal reputations for . . . something . . . suggests that they are marks being taken for a ride by their client.

    The court was legally bound to not only privately consider those arguments, but also to publicly assess them.

    A reasonable lawyer would not just understand this, but know it before they filed a silly motion asking the judge to recuse herself for following the law.

    A reasonable bar association might wonder whether an unreasonable lawyer ought to be practicing law at all.

    • Harry Eagar says:

      Bingo. I like your con men/marks distinction better than the often used, if you’re not om the invitation, you’re on the menu.

      • Spencer Dawkins says:

        I love both of these points.

        I love for the day when more people think “unreasonable” also means “unfit”, and maybe even “unwell”. Trump parlayed being unreasonable into four years in the White House, along with being treated unfairly – but it was an effective performance.

      • timbozone says:

        Amongst the dead at Stalingrad, there was little distinction between who were the con-men and who were the marks…

        The danger of sliding blindly or rushing avidly into the world of the illusionists in our midst is very real. Ignorance always has consequences, the question is to which illusions one holds on to to the point where there is abruptly no return.

    • bbleh8ch says:

      I continue to suspect that, in this and other such instances, the lawyers DID understand that what they were arguing was silly but were explicitly ordered by Trump to make the arguments anyway.

      • Scott_in_MI says:

        One would think that Judge Engoron’s response to repeat performances of that silliness might give Trump’s lawyers pause when considering the best response to similar orders in the future.

      • earlofhuntingdon says:

        As Judge Engoron noted, it’s irrelevant to their liability whether the lawyers responded to their client’s demands are came up with these arguments of their own accord. They have independent obligations to their profession and the court, which they violated through repeated submission of frivolous motions and intentional misreading of applicable law.

        • SteveBev says:

          Absolutely correct.

          It is such a basic proposition that it hardly sees stating but

          The relevant NYAdministrativeCode s130-1 makes it crystal clear.

          The sanctions were imposed pursuant to 130-1
          S130-1a provides re pleadings motions or papers etc

          “Section 130-1.1a Signing of papers.
          (a) Signature. Every pleading, written motion, and other paper, served on another party or filed or submitted to the court shall be signed by an attorney, or by a party if the party is not represented by an attorney, with the name of the attorney or party clearly printed or typed directly below the signature. Absent good cause shown, the court shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party.
          (b) Certification. ••••By signing a paper,•••• an attorney or party ••••certifies ••••
          that, to the best of that person’s knowledge, information and belief,
          formed after
          •••••an inquiry reasonable under the circumstances,••••
          (1) the presentation of the paper or the contentions therein ••••are not frivolous••••
          as defined in section 130-1.1(c) of this Subpart,
          and (2) where the paper is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom, and (ii) the matter was not obtained in violation of Part 1200. Rule 4.5 of this Title.”
          Emphasis added

    • ApacheTrout says:

      The GOP’s reliance on gerrymandering and their Primary to the Right strategy produces a inbred clan where everyone looks, breathes, and thinks alike. Pa and money are always right; and nobody notices the drift into incompetency. They’re at the point of being incapable of opening a window for fresh air, or using a doorknob to open the exit door.

  3. TimothyB says:

    Thanks for this clear layout.

    `Chutkan similarly noted that Trump’s team had to adopt a “hypersensitive, cynical, and suspicious” ‘ needs a noun following it.

    Chutkan herself had “perspective” there. The court in Nixon contrasted an HC&S “person” to a reasonable observer. In any event, this post, Chutkan and the Nixon court all seem to agree that the problem is one of misreading of evidence taking the reader out of the reasonable person frame.

  4. Attygmgm says:

    Even if one had a strong argument for recusal, and Lauro & Co. do not, it is always a mistake to drag a weak argument into court. It weakens any strong argument you might have (should there have been one), and particularly in this case, where their motion rested on disingenuousness, it says to the court, “I am not a lawyer you can trust to make cogent and well-founded argument.” And, “Yes, Your Honor, I am this much of a lightweight.”

    This motion is a fine example of how lawyers accelerate their own personal and professional slide into Trump’s swamp by doing his political bidding in the far harsher and demanding glare of the legal arena.

    • RitaRita says:

      On the other hand, if your only arguments are weak tea, maybe you make them in the hope that the judge is swayed by extra-judicial considerations. It seemed to have worked with Judge Cannon.

      Lawyers who sign up with Trump surely are aware, by now, that Trump will ask them to do the unethical, if not, the illegal. Probably, ego tells them that they can handle Trump. That and the money and publicity help convince them to represent Trump. Unethical in service of Trump seems to result in fame and fortune in right wing circles.

      Trump, with his disdain for the judiciary and contempt for the rule of law, is inching into sovereign citizens territory.

    • SteveBev says:

      However if you think about the substance of the proposed ‘narrowly crafted’ “ limited gag order”
      Para 2

      ‘Consistent with Local Criminal Rule 57.7, this prohibition does not preclude the defendant or his attorneys, agents, or others acting on his behalf from (a) quoting or referring without comment to public records of the court in the case; (b) announcing the scheduling or result of any stage in the judicial process; (c) requesting assistance in obtaining evidence; or (d) announcing without further comment that the defendant denies the charges.’

      If public records of the court in this case includes his own attorneys filings,
      Trump would be able to selectively quote from his attorney’s motion to recuse And proclaim his innocence without infringing the order.

      So by such means he can, without comment, continue to attack the judge and thereby the proceedings as being unfair.

      • sohelpmedog says:

        We don’t yet have a protective order, but it’s not so simple. The issue of recusal – I.e., the judge’s alleged “bias” has been decided. Trump cannot put just any shit into a filing and then evade a protective order just by saying he is merely reciting what’s in the record.

        • SteveBev says:

          One would hope not

          But I would not be surprised to seeing him test the limits of any order however formulated.

          Chutkan’s ruling has made it clear that the contents of their filings on the motion to refuse, had inadequate foundations in fact and law.

          The limited gag order perhaps needs to make it explicitly clear that any quotation from court records should not by selection or editing be capable of interpretations which misrepresent material facts or law

      • Doctor My Eyes says:

        I find it impossible to imagine Trump’s even attempting such careful, strategic speaking. Trump does not deal in clever bending of rules; he compulsively flouts rules. His point is always “You’re not the boss of me,” never “You have power over me but I outwitted you.”

        Trump’s toxic masculinity precludes being sly or winning through clever manipulation. The kind of manly man Trump pretends to be just grabs what he wants.

    • emptywheel says:

      I don’t doubt that’s true as a matter of litigation.

      But the only thing Trump cares about is delay and political posturing. He is using the posturing as a camapign prop. And he believes if he can delay sufficiently, that campaign prop will give him the power to make all this go away.

  5. Mister_Sterling says:

    Perfect coverage there from Chutkan. Trump’s team is looking for a crack they can exploit in their post-conviction appeal. But for now, they are desperately seeking their appeal entry point. Winning this case? That’s not even up for discussion.

  6. BRUCE F COLE says:

    The order was indeed well-crafted and I think it will withstand the DC Circuit appeal which will be filed soon, I assume. The Circuit might even take the case en banc, and there’s even a chance that the decision will be per curiam, though I doubt that.

    But then a SCOTUS appeal will follow, and that’s where it gets sticky. 4 of those Justices are dismissive of legal convention, crafting their opinions out of thin air in many cases. 455(a) self-recusals being so rare will have no meaning for them, nor will her appeal in this order to the “reasonability” of her position. Those 4 will be amenable to Trump’s arguments in this matter. Kavanaugh and Roberts will be the wild cards, and I think the defense will hone in on this portion of the commentary that Chutkan made in the Palmer case:

    “And it is true, Mr. Palmer — you have made a very good point…”

    And they will focus on two words: “very good.” That, they will say, was a value judgement on her part regarding Palmer’s complaint that the organizers and instigators of the riot were, at that point, legally skating. And the actions she attributes to his “very good point” are:
    “that the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged.”
    That’s makes her “very good” modifier a value judgement on the matters before her in this very case, that Trump organized and exhorted the mob to do what they did, rather that just being an addled bystander (or however they decide to portray his inaction while watching the mob decimate the Capitol from the WH, when the time comes).

    They will restate for the high court that she had at that point formed an opinion about Trump’s culpability based on her “very good” positive affirmation (as opposed to a mere neutral acknowledgement) of Palmer’s impugning of Trump and his co-conspirators. Kavanaugh may well be amenable to that argument, and possibly Roberts as well.

    I was wrong in my earlier assumption that she would self-recuse based on the likelihood that the SCOTUS would find against her — and maybe, hopefully, I’m wrong about that as well — and that her stepping down would have actually expedited the trial process. I’m afraid that those two words are going to have a serious impact.

      • Ginevra diBenci says:

        I agree with you, earl. Aside from Thomas, they seem unwilling to do Trump any favors that might compromise their own self-images. Trump (in typically transactional fashion) believed that in appointing “his three,” he created in them a debt to himself–a kind of permanent ownership.

        They have performed a kind of independence from him. Would that that extended to their sponsors among Leonard Leo’s network of huge-money donors.

    • Nessnessess says:

      I am not a lawyer. Just someone watching all this in horror, staving off despair. I am always pleased when things go against Trump. But much of this depends on good faith interpretations of “reasonable” people. And it doesn’t seem entirely unreasonable for someone to interpret a perfectly sensible Chutkan statement such as, “It’s a blind loyalty to one person who, by the way, remains free to this day,” as indicating something recognizable as a “bias” on her part. Her “by the way” seems more attitudinal than substantive, a verbal aside made more potent by its very banality. Even the concluding “to this day” contains fragments of exasperated or impatient displeasure. I would not like to see that argued, much less see that argument prevail. But it doesn’t seem an “unreasonable” argument someone to make.

      • BRUCE F COLE says:

        That right there is my point. And the 455(a) language is actually “her impartiality might reasonably be questioned.” “Might” is a mightly low bar, iow, if an appellate court wanted to look at it that way.

        Going forward, though, keep in mind that taking it further up the judicial ladder likely means that they’re no longer only in 455(a) territory only (as regards her refusal to self recuse), but 455(b)(1) becomes a new benchmark:

        That section has a more exacting requirement for recusal, thus my emphasis on the “very good point” wording which is more to the defense’s point than the other phrases where a sense of pre-judgement can “reasonably” be inferred. Also “personal knowledge of disputed evidentiary facts concerning the proceeding,” the second half of that set of (b)(1) conditions, will potentially be a defense target.

        I don’t share the assured conviction that the conservative justices, the bulk of them anyway, give two shits about their public image (as offered above as impetus for them not even wanting to look at this issue). Kavanaugh is the only one of them who’s been agreeing that something needs to be done, corruption-wise with the Court, and done soon, for example.

        • earlofhuntingdon says:

          Probably useful to reread Chutkan’s decision, and the standard for recusal, which Trump’s lawyers blatantly ignored.

          • BRUCE F COLE says:

            I did read it as well as their pleadings, and as I said, hers was finely done — and virtually air tight in a rational setting. My comment is about ultimate SCOTUS review of this, and the vagaries of their self-interested application of the law.

            It may or may not be in their self-interest to get Donald ultimately off the hook (and that opportunity may not even present itself), but I wouldn’t put it past them to participate fully and fervently in any foot-dragging exercizes (as this case being prolonged unquestionably favors the Right, and that general outcome is their main driver, not the law per se when their religion- driven “convictions” are on the line). And that’s why I think this could go south for Chutkan.

            Subsequent appeals could be denied cert, no doubt, but I don’t see 4 of the 9 voting that way if it gets to them, in any form — and 4 is all it takes to grant it.

            This case is just as critical to their “agenda” as well as strategically critical, after all, as Bush v Gore was under Rehnquist, except that this one doesn’t have an Electoral College safe-harbor clock running. It’s the same general sort of dynamic but with “all the time in the world” to sort it out to their satisfaction.

            Please tell me I’m being too cynical as to their motivation in saying that the soundness of Chutkan’s order may not be what matters in the end; I’ve been itching to play with the emoji function here.

            Q:Was it proper for SCOTUS to even hear Bush v Gore, let alone rule the way they did on it? …These 5 guys and 1 gal are on that same team — and less inhibited.

            This is going down both in the most public of spheres, and with Human History as backdrop…as well as foreground. You think they’re not gonna jump on this and hump it to death?

            This Court doesn’t even bother with complainant standing when civil rights are being adjudicated. And they’ve literally legalized bribery in Congress, as long as you aren’t too showy about it. (Although for themselves, being showy with their graft is just fine). I don’t get the concept of them adhering to precedent, let alone statutory text when they decide they don’t want to and don’t have to.

        • SteveBev says:

          “Might question impartiality” in the context of intrajudicial statements means, as a matter of settled law, “evinces to the reasonable well informed observer the appears to be a deep seated antagonism or favoratism”

          Parsing texts with a forensic eye is an important legal skill, but it should be related to determining whether there is evidence material to the task at hand. That task is not what you think ‘might question impartiality’ means or ought to mean, because the law has settled what that task involves in this context – determining whether there is evidence of a deep seated antagonism.

          • BRUCE F COLE says:

            So the meaning of the text itself doesn’t pertain? I don’t get that. I mean, she’s a master of the English language, she knows what her words mean.

            As to settled law, well we know what that means to the folks who gave us Dobbs.

            • SteveBev says:

              Here is Liteky v US

              You need to identify what is wrong with the decision. If you prefer the analysis of Justice Kennedy’s concurring opinion to the of the majority opinion propounded by Justice Scalia and joined by Chief Justice Renquist you will need to address 3 questions
              1 Whether that interpretation and their notion of what is reasonable judicial conduct which would not give rise to the appearance of partiality, accords with the much lower standard that you claim is a proper interpretation?
              2 What do you think an even more conservative court would do when faced with the prospect of overturning a Scalia judgment on the principles in involved in assessing the court room conduct of a judge?
              3 And even if the current Supreme Court were minded to reconsider the matter, how likely are they to do it on the legally and factually frivolous record created by the defence in the present case?

              • BRUCE F COLE says:

                I don’t need to identify what’s wrong with Liteky, only refer to its embedded exception:

                Scalia: “First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”

                Note the phrase “almost never.”

                Further down the ruling he says this:
                “Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. ”

                Note the word “unless.”

                So there’s the exception to the intrajudicial source exclusion doctrine to 455(a) that Liteky sets down:
                “…unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” That’s the landscape that I think Chutkan’s–

                –in her Palmer decision can be squeezed into.

                Also note that “deep-seated favoritism or antagonism” brings us now directly into 455(b)(1) territory of “personal bias or prejudice concerning a party,” thus my assumption that that section of 28 USC 455 will be on the table in appeal, laminated onto 455(a) as Scalia did in Liteky.

                None of this is to say that Chutkan should be recused, or that Smith’s team didn’t to a stellar job of rebutting Trump’s motion to recuse (including with respect to her commenting on persons not party to the Palmer and Priola cases). I’m just saying that if it gets to SCOTUS, the conservatives there will have some daylight to squeeze their agenda-driven freight-train through — as they’ve done countless times in recent memory. I only hope Kavanaugh and Roberts will decide not to hitch themselves to that train this go-round — but I’m not at all confident they won’t.

                • SteveBev says:

                  It is extraordinary that you now claim

                  “ Scalia: “First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”

                  Note the phrase “almost never”

                  …, That’s the landscape that I think Chutkan’s–

                  –in her Palmer decision can be squeezed into.”

                  When your original argument was, and I quote

                  “her impartiality might reasonably be questioned.” “Might” is a mightly low bar, iow, if an appellate court wanted to look at it that way.”
                  from which, argument you have not deviated from one considers the factually slight and tenuous basis on which you say the the application of the rule would require recusal.

                  Except of course it is sophistry of the most blatant sort, equivalent to believing black = white, to imagine that your mightily low bar interpretation of might is the equivalent to “almost never refuse a judge for intrajudicial statements”

                  A very poor show IMHO.

                  • BRUCE F COLE says:

                    Thanks for the feedback.

                    I don’t think you understand my POV on this: I’m not arguing that Chutkan should be recused or that her dismissal of Trump’s motion was in any way flawed, nor am I saying that the govt’s rebuttals to Trump’s motion fell short. She should not be recused and Liteky does indeed support that.

                    I am only offering devil’s advocate arguments that I think would be hand-holds that a corrupt SCOTUS majority might decide to grab. I’m not arguing for that to happen, just predicting, based on recent SCOTUS history, how they might bollox this one up in favor of the Right, like they did Bush v Gore.

                    They might even refuse to allow such a ruling to be used as precedent like they did in BvG, such that Smith wouldn’t be prompted to file for Cannon’s recusal based on her own intrajudicial evidence of bias toward Trump, for example. That’s the level of corruption those 5 or 6 Justices are capable of.

                    If in trying to point that out I exhibited what looked like actual advocacy for her recusal, I apologize. I did say that I expected her to recuse only for the sake of expediting this trial because I feel that it will inevitably be in SCOTUS’ lap (I disagree with eoh about likely denial of cert by them), and that her chances there are deminished by virute of that court’s majority’s documented corruption and disregard for both precedent and statutory intent in the service of personal political gripes. Kavanaugh’s “What goes around comes around” comes to mind.

                    One more point: there’s an elephant in the room that’s being skirted here so far (and that’s understandable since this is a legal blog and legal arguments are paramount here), and that elephant is the historical aspect of this trial, and how it will be viewed by the nation and world today, and by history going forward, as to its ultimate fairness. That’s what underlied my exchange with Nessnessess above, and why that part of my comments in this thread might have seemed adversarial to Chutkan’s position.

                    I think it’s not a moot point in this case, iow, how the subject of judicial fairness as perceived from outside the courtroom and the confines of DC is handled, and I think that ignoring the extrajudicial, or “lay” aspects of that problem is not a rational option. While I believe that Chutkan is an immanently fair Judge and one who will project that fairness despite Trump’s wailing and gnashing of teeth, I’m almost certain that the SCOTUS conseratives will take those two intrajudical comments of hers and amplify them to the point that they can proclaim the need to recuse for “historical fairness’ sake,” or a like rationale.

                    It’s true that Trump’s cult will not see anything that impugns their leader as fair, so that’s not what I’m talking about. I think that the SCOTUS, if this does get to them and they decide to order her recusal, will trot out the “paramount necessity” (or some such wording) of the nation and the world being able to see this trial as untainted by prejudice from the bench, and that will give them the pretext for ruling against the judiciary’s protection from intrajudical commetary being subject to 455, as offered by Liteky, as well as their doing it as a per curiam “one of a kind” ruling like Bush v Gore was — “a special case,” so that Liteky will stand despite their abrogation of it.

                    Thanks again for your pointing out of the weaknesses of my commentary above. I hope that Roberts and/or Kavanaugh see it that way if that kind of argument comes to them.

        • SteveBev says:

          Further, the defense did not argue that the standard for intrajudicial statements was too exacting, that the caselaw was a wrong interpretation of the statute and for that or other reasons was wrongly decided; all of which they would have needed to do to be able to advance in the appellate courts, what you now appear to be saying was their better or more attractive argument.

          They instead attempted to avoid the application of that standard by pretending that there was or must have been an extrajudicial component – ie disputed the factual foundation for the application of that standard.

          They then sought, by tossing into their cauldron of bad faith a mish mash of cherry picked citations from a wide range of inapplicable cases to pretend that the standard just happened to be one they conjured from the resulting witches brew.

          This is going nowhere.

    • AllTheGoodIDsWereTaken says:

      One problem with that line of reasoning seems to be that in the DC District Court case, Trump is not charged with being an “organizer or instigator” of the mob. Yes – this is the “Jan 6th case”, but the charges are (IMHO) narrowly crafted to focus on the non-mob related efforts to disrupt the certification (the closest it comes is accusing him of exploiting the mob). So, even if someone were to think that that Judge Chutkan had opined on his guilt in inciting the mob (which she didn’t), that would still not show that she had already made up her mind on the matter that is actually before her.

  7. Rugger_9 says:

    It would appear that Judge Chutkan is giving Defendant-1’s team plenty of rope to tie themselves up in knots. Asking our attorneys here, aside from annoying the judge which will likely lead to adverse rulings on 50-50 questions later, how many otherwise valid arguments is the defense taking out of their toolkit for later in the trial and appeals? It would seem to me that this try any damn thing approach might preclude the ability to argue a point in a different way (Y) since it is already in the transcript as X.

    The judge has been careful but no-nonsense, which is the worst kind to get if your case is only about pounding the table.

  8. Alan_OrbitalMechanic says:

    A bit of a legalistic question:

    “both defendants sought a lower sentence on the grounds that their culpability for the January 6 attack was lesser than that of others whom they considered to be the attack’s instigators, and so it would be unfair for them to receive a full sentence while those other people were not prosecuted”

    Isn’t the case that a hit-man that actually carries out murder eligible for 1st degree but the guy who paid for it isn’t? If so I don’t see how this defense argument holds up.

    • Ginevra diBenci says:

      It is not the case that outsourcing murder to a hitman reduces your legal exposure. When investigators can prove that you ordered the hit, you are on the hook for murder and (usually) conspiracy.

      It is, however, harder to trace the links in many murder-for-hire plots, which makes proving guilt against the person who ordered the hit harder (although luckily for law enforcement, many masterminds are morons when it comes to details). That is the reason, I suspect, why it seems to you as if those who order hits get off easy compared to those who execute them.

      It is not due to lesser penalties in law.

  9. brucefan says:

    It would be worth your while to check out the part of the sentencing guidelines cited by the judge (page 359 on the pdf I pulled up).

    3B1.1 allows upward changes for an aggravating role in the criminal activity (leaders of the group of participants) and 3B1.2 allows downward changes for mitigating role in the offense (minor or minimal role).

    These issues could come up again (e.g., documents case).

    There are a lot of leaders in this barrel.

  10. TooLoose LeTruck says:

    IANAL, and don’t pretend to be one, either…

    Especially here…

    But I can recognize a slap down when I see it…

    And damn, that one’s gonna leave a mark…

    And, damn,

  11. Purple Martin says:

    The statements at issue here were based on intrajudicial sources… [sentencing proceedings in United States v. Palmer and United States v Priola]…

    To extrapolate an announcement of Defendant’s guilt from the court’s silence is to adopt a “hypersensitive, cynical, and suspicious” perspective rather than a reasonable one. Nixon, 267 F. Supp. 3d at 148.

    Not to mention the bad faith perspective of those originating an argument solely in service of extrajudicial objectives.

  12. bloopie2 says:

    Nice recitation, thank you. I want to follow up on one comment: “Chutkan’s order was judicious, clinical, and never once responded to the ridiculous claims John Lauro made in his bid to remove a Black woman judge.”

    I note that Letitia James, the NY AG, is also a Black woman. As is Fani Willis in Georgia.

    There’s a lot of ways to go with that set of facts. One way is to blubber that Trump is just…well…being Persecuted for being white, now, isn’t he? Another way is to realize that, as you get older, the world changes around you. We all have to face up to that sooner or later. This, unfortunately for Trump, is his moment in the sights of History.

    • earlofhuntingdon says:

      A more obvious way to go is to recognize that Donald Trump is racist, misogynist, and xenophobic, ample evidence for which goes back decades.

      • FiestyBlueBird says:

        All apt descriptors, Earl.

        Question for bmaz follows…

        I was hoping to see someone else ask this.

        In light of yesterday’s legal judgement in New York, bmaz, will there be any policy change on this site regarding permission to refer to the convicted fraudster, Donald J. Trump, as a crook?

        • bmaz says:

          Uh, since Trump has not been “convicted” of anything, no that is a silly idea. What is the bug up people’s butts about using stupid nomenclature instead of playing it straight. It is truly baffling.

          • Chetnolian says:

            May we unpick this? My fairly old British dictionary (I am too mean to buy a newer one and too cussed to check Webster) defines a criminal as one guilty of crime. It is correct for BMAZ to say Trump is not technically that as a result of the NY judgement.

            But the dictionary describes a crook as “a professional swindler or thief” and says it is Australian slang. It is a personal description not a legal term of art. Therefore if I say that Judge Engeron’s judgement effectively describes Donald Trump is a crook I think that is semantically entirely correct.

          • FiestyBlueBird says:


            I was two-beer emboldened to ask. Messed up using the “convicted” word, apparently. This place is a free, or for a small contribution, ongoing education.

            (My mind still whispers what cannot — yet — be written here.)


          • earlofhuntingdon says:

            My unpicking of it is that “crook” is pejorative shorthand, unsuited to the kind of precise and in-depth research and writing Marcy contributes to journalism.

            • FiestyBlueBird says:

              The in depth mastery first got me hooked.

              But it was the Big Dick Toilets And Sasquatch Dolls headline day that opened my pocketbook.

              I can’t defend that. But I’ll admit it.

            • Chetnolian says:

              I agree as to the posts but not necessarily about comments. And anyway (and I did go back to my dictionary to check) while it is shorthand and indeed demotic I am not sure that in this case it really is pejorative rather than simply descriptive. Commentators frequently use lighthearted terminology.

              • earlofhuntingdon says:

                Once an English gentleman, always an English gentleman. I’m pretty sure, however, that most people using the term mean it pejoratively, rather than as an objective description.

              • SteveBev says:

                You may soon get a chance to revisit the question of the appropriate use of the word crook

                The 6 remaining causes of action due for bench trial next week ( the appellate court having refused today to issue w stay) each incorporate by reference provisions of the NY Penal Code ( false statements, conspiracy etc)
                Though not convictions, Engoron’s seeming inevitable findings that Trump et al breached the criminal laws in various ways in a reasoned decision specifying precisely what evidence justified the conclusion on each cause of action and how and why he is convinced by that evidence to find the criminal law was breached would be a powerful reason substantially justifying the use of the adjective whose name we dare not utter yet.

            • Savage Librarian says:

              Makes me wonder how many school textbooks tell children that Nixon was telling the truth when he said, “I’m not a crook.” November 17 will be the 50th anniversary of that statement that defined his legacy.

        • wasD4v1d says:

          He was not convicted of a crime – this was a civil case for which he was found liable for fraud, where the standard is usually preponderance of the evidence. But no criminal case has yet been brought in a ‘beyond reasonable doubt’ environment.

        • Rayne says:

          It’s rather irritating to see commenters spout off inexactitudes projecting on this site responsibility through policy for commenters’ sloppy use of language when this site hosts those words and may find itself at the front line of having to defend such spume.

          How many times does it need to be said that the case before Justice Engoron brought by New York State against Trump et al was a CIVIL CASE and NOT a criminal case? There was no conviction as bmaz has noted; there was a judgment — that’s literally the last line on page 35 before Engoron’s electronic signature.

          Nor is this about the use of the King’s English — it’s about U.S. and state law. It’s not about the First Amendment which says you have the right to say whatever you want on your own blog, but the right doesn’t mean without consequences. Hello, SLAPP suits for defamation and libel claims with which the defendant in question is all too comfortable?

          • bloopie2 says:

            I have been righteously schooled, and now agree 100%. Course, li’l ol’ me agreeing don’t amount to much; it’s your blog and we go by your rules. Still, on reflection, they’re good rules: Discourse here is civil, and safe, and enlightening. It’s a land of discovery, as well as a land of critiquing what we already know. I’ve been away from the seminar table for too long.

    • bidrec-gap says:

      Anthony Scaramucci has said that Donald Trump is not a racist. He is an asshole. It was only with great difficulty he was dissuaded from inviting his friend Don King to the inauguration.

      A velleity of mine is that there some way, some how that Trump could be charged with something in Passaic Count, NJ where the bail bondsmen do double duty as boxing promoters. With Don King in his corner that would be a riveting side-side-sideshow.

  13. earlofhuntingdon says:

    Fresh off their last non-victory, Trump’s lawyers ask Judge Chutkan for a 60-day extension for filing pretrial motions. That’s a lot of extra time. Teri Kanefield on mstdn describes even a 30-day extension as requiring special circumstances.

    Predictably, Trump’s lawyers blame the novelty of the proceeding – the President [sic] being [politically] prosecuted by the current President, in “the middle” of his campaign for reelection. They claim to be reading, presumably one paper page at a time, some 13 million pages of discovery, etc. Another reason is that they are preparing a series of motions – to be extensively documented – which they appear to intend to file consecutively, one at a time. Can you say delay-delay in simple English?

    Judge Chutkan, herself an experienced defense counsel, will presumably deal with this professionally and in short order. My guess is she might give them an extra week or two, but nothing like two months.


    • SteveBev says:

      Thanks for this.

      I expect, in the light of the findings Chutkan was forced to make on the recusal motion, the defence’s frequent references in their extension application to ‘diligently researching’ to prepare ‘appropriate motions’ will have caused a wry smile.

      • Konny_2022 says:

        Especially this (p.2 of the motion): “This additional time, therefore, will conserve judicial resources by providing defense counsel the necessary time to assist the Court in fully understanding these novel issues.”

    • earlofhuntingdon says:

      Yea, Judge Chutkan is not likely to rate highly Trump’s lawyers’ idea of “diligent.” They seem to intentionally or negligently misstate the law at every turn.

      • Scott_in_MI says:

        To what degree is “hire more lawyers” an acceptable rejoinder to these arguments, either from the prosecution or the judge?

      • earlofhuntingdon says:

        Judge Chutkan is likely to note that Donald Trump still claims to be a billionaire. He has access to funds not only to pay for his own defense, but the defense for multiple other defendants in multiple other cases. It seems possible that she will tell him it’s time for him to hire whatever lawyers he needs or accept the representation he has. But his choice won’t dictate her trial schedule.

    • P’villain says:

      Something along the lines of “In the court’s view, Defendants very able counsel should find 14 days an ample amount of additional time.”

      • earlofhuntingdon says:

        I hope she gives them no more than seven days. Unlike the vast majority of defendants, Trump can hire whatever number of lawyers and litigation management specialists he needs to get the work done within the court’s schedule.

        The snark in counsel’s motion indicates tjhat they’re testing her, and that this will be one of many requests for extra time.

  14. M..Smith says:

    In my imagination I can hear Trump yelling at his lawyers. “So it didn’t work, fine. Let’s bring a motion to recuse based on the fact that our motion to recuse made her biased against us.”

  15. sohelpmedog says:

    Defendant’s application for 60 day extension to file pre-trial motions: if defendants’ lawyers have not yet reached the whining stage, they are almost there. Though what’s next bel about this case is that it involves a defendant who was president at the time of the alleged offenses, the laws under which he is charged and prosecutions thereunder are not particularly novel.

  16. Molly Pitcher says:

    Well, the racist, misogynist, and xenophobic former President is suing the author of the ‘Golden Showers’ dossier, Christopher Steele, at High Court in London starting Oct. 16. Trump filed a data protection complaint.


    “Mr Steele and Orbis Business Intelligence were previously sued for libel by Russian national Aleksej Gubarev over the publication of the dossier, claiming they were legally responsible for BuzzFeed publishing the dossier.

    However, in a judgment in October 2020, Mr Justice Warby dismissed the claim.”

  17. e.a. foster says:

    It was a lovely decision and just really gave the day some sparkle!

    In the other case, one of the defendents pled guilty. Lovely moment when I heard that.

    I remember when Melania and Donald Trump came down that escalator. The sibling said, this is going to cause a lot of trouble in the U.S.A. A couple of friends and I have beern watching this “shit show” ever since. Its a good thing we’re all retired. Now its just a case of living long enough to see him be convicted along with the others. This show has been running since June of 2015 I think. How did the U.S.A. get to this point? I know, I know, but just the same, it has been deeply disturbing. On 6 Jan. it was just plain scary.
    What has been amazing is to see the American political and judicial system deal with all of this and continue as a democratic country.

Comments are closed.